While the administration has hurried to interpret George W. Bush's re-election as a ratification of his political approach to the war on terrorism, the president's legal approach to that effort has so far suffered a rather thorough repudiation in the courts and in the court of public opinion. With the decision on November 8 by a federal court in Washington, D.C., ordering a halt to military commission trials under way at Guantanamo Bay, Cuba, the administration endured another defeat in its attempt to assert sweeping powers to detain, interrogate, and prosecute individuals caught up in the name of anti-terrorism. The question for the new administration -- and especially its attorney-general nominee, White House Counsel Alberto Gonzales -- is whether it is prepared to govern within the limits of the law established by those defeats.
Gonzales and the administration began articulating a radical new legal theory shortly after September 11, which they set forth in public statements, internal memos, and eventually in arguments to the federal courts. It was the theory behind the argument that the president could, of his own authority, order any U.S. citizen arrested and detained indefinitely without access to counsel or a day in court. It was also behind the position that the United States could hold foreign nationals at Guantanamo Bay indefinitely, not protected by U.S. law or the laws of war. And it undergirded the Justice Department's view that government officials may be immune to prosecution for torture or other unlawful conduct if they were acting according to the president's power as commander in chief. The idea is that law is in significant respects inconsistent with the power needed to fight terrorism. And in situations involving security, law, whether it constrains executive power or protects individual rights, should be replaced with trust in the president's prudence, policy, and self-restraint.
Three years later, the administration's track record in advancing that theory looks decidedly poor. Consider the military commissions. The commissions grew out of one of the president's earliest efforts (in November 2001) to skirt the rule of law in the war on terrorism. The commissions, created largely in secret and geared to bring about swift and certain punishment, were so unmoored from the U.S. military justice system of the past half-century, and so lacking in recognized fair-trial protections (such as a defendant's right to confront evidence against him or her, or appeal to an authority independent of the president himself), that commentators -- from conservative columnist William Safire to Harvard Law School professor Laurence Tribe -- condemned them across the board. Gonzales, one of a handful of administration lawyers reportedly driving the secretive process to establish the commissions, was forced to quickly “clarify” the commission order on the editorial pages of The New York Times.
The ensuing three years since the terrorist attacks have seen the administration backpedal from the hard line text of the President's 2001 order on several important aspects of the commissions, including recognizing a defendant's right to have his or her guilt proven beyond a reasonable doubt. But the commission process has become a Sisyphean exercise in building a railroad while demanding that it transport cargo at the same time. The commissions, whose first proceedings are barely under way, have earned the scorn of our allies, and have yet to produce a conviction. For some Pentagon insiders, the commissions seem as likely as not to collapse of their own weight.
Judge James Robertson's opinion on November 8 throwing the commission proceedings into “indefinite recess” only put a judicial imprimatur on what most of the uniformed judge advocate general officers involved in the commissions had long ago realized: In the court's words, “[T]he president is not a tribunal,” and the rules of the military commissions are “fatally contrary to or inconsistent with” U.S. federal law. As for the suggestion (advanced first by Gonzales, among others, in an internal White House memo in early 2002) that the Geneva Conventions need not apply to all U.S. conduct toward detainees captured in Afghanistan, the court called it squarely “rejected”: “[T]he Third Geneva Convention applies to all persons detained in Afghanistan during the hostilities there.”
While the commission process struggles along, the administration's more sweeping assertion of executive authority -- the power to hold U.S. citizens indefinitely without process or access to counsel -- was resolved substantially in the detainees' favor in an 8-to-1 ruling by the U.S. Supreme Court last spring. In recognizing the right of “enemy combatant” Yaser Esam Hamdi, a U.S. citizen, to a lawyer and to some fair process to challenge his detention, the Court acted with startling near unanimity to reject a central piece of the legal philosophy of which Gonzales had been a key proponent. Contrary to the government's assertion that Hamdi “has no right … to meet with counsel to plot a legal strategy to secure his release,” Justice Sandra Day O'Connor made clear that “due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker.” With the legal writing on the wall, the administration quickly negotiated Hamdi's release.
Finally, the administration's 2002 torture memo, solicited by Gonzales and drafted by the Department of Justice, likewise advanced an extraordinary theory of executive power. Prosecuting U.S. soldiers for violations of anti-torture laws that Congress had passed, Justice Department lawyers argued, would be an unconstitutional infringement by Congress on executive power to conduct the war on terrorism as the president saw fit -- even if that included torture among the president's agents' interrogation techniques. The public response to that theory when it was leaked was as swift and uniform as that surrounding the announcement of military commissions -- so much so, in fact, that the White House itself was eventually forced to disavow its own lawyers' analysis. Whether Gonzales privately approved the legal analysis before he publicly rejected it remains an important question for Congress to ask.
Meanwhile, in the two years since the memo's drafting, and despite the prevailing partisanship on Capitol Hill, Congress has passed a law reaffirming the U.S. commitment to abide by its obligations under U.S. and international laws banning torture and abuse. The authors of the torture memo are now reportedly the subjects of an internal Justice Department inquiry into whether they breached their ethical obligations by seeming to authorize torture. And in a survey of active-duty service members and their families conducted by the Annenberg Public Policy Center shortly before the election, almost 80 percent said the immediate commanders of those who tortured or otherwise abused prisoners in Iraq should be punished just as the actual perpetrators themselves were (with half of those polled calling for the punishment additionally of high-level command).
The past few years have seen many of the most sweeping claims of executive power advanced by Gonzales overturned, repudiated, or dismantled. Under the circumstances, the Senate should probe carefully whether an Attorney General Gonzales would understand and act within these legal limits as the White House undertakes the many difficult challenges the war on terrorism still presents.
Deborah Pearlstein is director of the U.S. Law & Security Program at Human Rights First (formerly the Lawyers Committee for Human Rights) and a visiting lecturer on human rights and national security at Stanford Law School.
